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In re Application of the County Treasurer of Cook County

February 26, 2004

[5] IN RE APPLICATION OF THE COUNTY TREASURER AND EX OFFICIO COUNTY COLLECTOR OF COOK COUNTY, ILLINOIS, FOR ORDERS OF JUDGMENT AND SALE OF LANDS AND LOTS UPON WHICH ALL OR PART OF THE GENERAL REAL ESTATE TAXES FOR THE 1996 TAX YEAR ARE DELINQUENT PURSUANT TO APPLICABLE SECTIONS OF THE REVENUE ACT OF 1939, AS AMENDED
(FORUS MORTGAGE CORPORATION, PETITIONER-APPELLEE,
v.
DENIS DWYER AND LILLIAN DWYER, RESPONDENTS-APPELLANTS).



[6] Appeal from the Circuit Court of Cook County. No. 00 coTD 4670 Honorable Edward P. O'Brien, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Greiman

[8]  Petitioner, Forus Mortgage Corporation (Forus), filed its petition and application for a tax deed of a single family residence owned by the respondents Denis and Martha Dwyer (individually, Denis or Martha; collectively, the Dwyers) based upon their failure to pay general taxes during 1996. Respondent Denis objected to Forus's application for the tax deed on the grounds that Forus violated various statutory provisions of the Property Tax Code (35 ILCS 200/22-5 et seq. (West 2000)) (Code) regarding the proper service and content of notice. The case proceeded to an evidentiary hearing, whereupon the trial court granted Forus's petition to be issued the tax deed. After the trial court entered its final order, Denis filed a document entitled "Post-Trial Motion of Respondent Denis Dwyer." On that same date, Lillian filed a document entitled "Post-Trial Motion of Lillian Dwyer." The trial court entered separate orders denying each motion, and the respondents appealed. For the reasons that follow, we dismiss the appeal.

[9]  On February 13, 1998, the 1996 delinquent real estate taxes of the respondents' single-family residence were sold at a public tax sale. Tax Deed, Inc., purchased the taxes and later assigned its interest to Forus. At that point, therefore, Forus was holder of a tax certificate issued by Cook County memorializing the sale of those delinquent taxes. On August 24, 2000, Forus filed a petition for an order directing the Cook County clerk to issue a tax deed conveying the property to the petitioner unless the respondents made a redemption from the tax sale on the property within the given redemption period. On January 17, 2001, the redemption period expired without any attempt by the respondents to redeem. Accordingly, a number of evidentiary hearings were held regarding Forus's petition for tax deed.

[10]   The petition, on its face, identified the case number pertaining to the respondents' property as "00CoTD4670," as indicated by a stamp affixed to the petition. However, immediately above the legible "4670" number is a blacked-out rectangle that appears to cover an entirely different case number. Attached to the petition as its only exhibit is a copy of the tax certificate. As Forus notes, the reverse side of that document is time stamped and contains a rubber stamp showing the "4670" case number. The reverse side of the tax certificate also appears to contain another case number that has been blacked out.

[11]   At a January 31, 2001, hearing, Denis appeared pro se. When the trial court inquired as to whether Denis was present on behalf of case number "00CoTD4670," Denis advised the court that he had been served with a document with the case number "00CoTD4607," and that he had not received any other notice for any other cases. Forus's counsel responded that the Cook County clerk's office (clerk's office) contacted it on the day it filed its petition and that the clerk's office claimed that it had "misnumbered" the file and told Forus that it should bring back the case file. Denis then asked that the case be dismissed due to the incorrect case number and Forus asked for a continuance. The court ordered the case continued.

[12]   On February 16, 2001, Forus filed its "application for an order directing the county clerk to issue a tax deed" (application). Attached to the application, among other things, was an affidavit outlining the process by which service was attempted or obtained on the Dwyers and other persons having an interest in the property, as well as copies of various notices, sheriff's return forms, and other documents. Denis filed a pro se appearance on April 10, 2001, and on May 1, 2001, he filed formal objections to the petition in which he stated that he received the wrong notice from the clerk's office and no notice whatsoever from the sheriff.

[13]   More than one year later, on July 30, 2002, the trial court sua sponte ordered a hearing regarding Denis Dwyer's request for the court to take judicial notice of the docket entries for case numbers 4607 and 4670. In that regard, the court subpoenaed a supervisor of the clerk's office, Perpetua Gauthier, to testify concerning the docket entries, and subpoenaed the relevant docket book itself. An assistant State's Attorney, Brian Grossman, represented the clerk's office and was the first to question Gauthier.

[14]   Gauthier testified that the proper procedure for correcting a mistake to the docket book is to put a single line through the mistake, sign one's initials, and proceed to the next entry line. However, clerk's office employees are not instructed to use white correction fluid, as that obscures any mistakes made without being able to reveal what the mistake was. With regard to the number "4670" docket sheet, she noted that an entry dated "9 - 18 - 00" reads "P 998375," followed by a second illegible number that appears to have been "whited-out," followed by the numbers 379 and 386 and the word "OK." She testified that entries beginning with the initial "P" indicate certified mailings by the clerk's office and that the letters "OK" mean that the green return receipt cards were signed and returned. If the cards were unclaimed, however, the entry would be "U-N-C-L." She also stated that entries beginning with the letter "Z" indicate a certified mailing by the sheriff's office, but that there are no "Z" numbered entries on the number "4670" docket sheet.

[15]   Thereafter, Forus called David May, an employee of the clerk's office, to testify. May asserted that he was the individual who stamped case number 4607 on the documents filed for the case at bar, that the true case number should have read 4670, and that he noticed the mistake later that evening upon reviewing his records. He asserted that on the next day, he went to the sheriff's office after speaking with Forus to insure that the forms with the incorrect numbers were not mailed. While at the sheriff's office, May called Forus's counsel, Benjamin Bass, to inform him that the incorrect notices had not been mailed and that he was changing the copies to correct the numbers. May asserted that after he changed the numbers from "4607" to "4670" by crossing out the mistaken number and inserting the proper number, he returned to the clerk's office to make similar changes.

[16]   May conceded that the "take notice" forms left in the file that were not being used by the clerk's office might not have been changed, but to the best of his knowledge, the forms actually mailed had been corrected. May also stated that he could not remember whether he changed the certificate of mailing to show the proper case number, but again claimed that the notices themselves would have had the correct number. Thereafter, the trial court announced its decision.

[17]   Initially, while the court allowed the clerk's docket book for both case numbers "4607" and "4670" to be admitted into the record, it attributed little or no probative value to that evidence and noted that evidence is not capable of judicial notice. Further, it found that while an undisputed original of a certificate of mailing (which reflects what documents were mailed and when they were mailed) was not in the file for the court to consider, the three attempts at personal service at different hours of the day were sufficient to satisfy Forus's statutory compliance, and the sheriff's returns showed compliance with the obligation to provide certified mailing of those "take notices." Finally, it found that because May was the closest any party could come to a neutral witness, May's testimony was credible as to his mistake, his becoming aware of it, and making the changes required by hand corrections. The court then granted Forus's application for deed and denied Denis Dwyer's objections.

[18]   On August 21, 2002, Denis Dwyer filed documents entitled " Post-Trial Motion Of Respondent Denis Dwyer." On the same date, Lillian, represented by counsel, filed a document entitled "Post-Trial Motion of Respondent Lillian Dwyer." On October 24, 2002, an order was entered denying Denis's motion and a separate order was entered denying Lillian's motion. Both Dwyers filed their notice of appeal on November 19, 2002.

[19]   Forus asserts that because the Dwyers did not file a timely notice of appeal, we should dismiss their appeal for want of jurisdiction. Forus notes that the trial court's order for deed, which was a final order disposing of all the issues between the parties, was entered on July 30, 2002. As noted, the Dwyers filed their notice of appeal some 112 days later, invoking Supreme Court Rules 301 and 303 (155 Ill. 2d Rs. 301, 303) (appeal from a final order) as the basis for their appellate jurisdiction. Rule 303(a)(1), however, provides that notice of appeal from final judgments in civil cases must be filed with the clerk of the circuit court within 30 days after entry of final judgment. 155 Ill. 2d R. 303(a)(1). Or, if a timely postjudgment motion directed at the final judgment has been filed, notice of appeal must be filed within 30 days after entry of the order disposing of the last pending postjudgment motion. 155 Ill. 2d R. 303(a)(1). Consequently, barring the existence of a proper postjudgment motion filed within 30 days after the trial court's entry of the order for deed, appellate jurisdiction is lacking.

[20]   Forus asserts that the trial court "had no basis for receiving or determining the post-trial motions" and, thus, no occasion to toll the 30-day appeal period starting on July 30, 2002. Forus notes that this is a real estate property tax case arising out of the Property Tax Code, and that all matters pertaining to property tax levies, tax collection, and related matters are purely statutory and are subject to the express provisions of the statute creating authority for the process involved. As such, section 22-45 of the Code provides:

[21]  
"Tax deeds issued under Section 22-35 are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under Section 2-1401 of the Code of Civil Procedure in the same manner and to the same extent as may be had under that Section with respect to final orders and ...

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